Q&A: Turlock attorney addresses ADA compliance issues businesses face

More than 50 businesses in Stanislaus and Merced counties have been sued by serial plaintiffs making a living from lawsuits alleging barriers confronting disabled people. They say they are standing up for rights guaranteed under the federal Americans with Disabilities Act of 1990.

Many business supporters contend that those who sue are out to make easy money in quick settlements – typically several thousands of dollars, which is less expensive than trial. Several legislators blame political gridlock for not fixing laws that allow what they consider legal extortion.

The four who have sued local companies include a convicted pedophile and thief living in Arizona, two disabled men from Southern California and an Atwater woman. Between them, they have filed at least 820 lawsuits up and down the state.

Turlock attorney Michael Warda represents a sports store in town targeted in one of the lawsuits. He addresses issues that might confront all businesses wanting to avoid legal problems and make life easier for disabled patrons.

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Failure to comply with parking requirements (signs and paint), doorway access, signage, restroom access, toilets not mounted the correct distance from wall or partition, flush valve for the toilet is on the wrong side, and ramps that are too steep. There are other violations, like placing merchandise or information racks in aisles, which reduces path of travel.

Does it cost much to fix these problems?

The law requires that a business owner remove architectural barriers or add certain improvements when readily achievable. The implication is that it can be done without much difficulty or expense. Inexpensive, easy steps to take include ramping one step; installing a bathroom grab bar; lowering a paper towel dispenser; rearranging furniture; installing offset hinges to widen a doorway; or painting new lines to create an accessible parking space. The problem is that litigating what is readily achievable can be expensive. The idea is that over time, businesses should do what they can to evaluate their facilities and develop a long-term plan they can afford. Unfortunately, this creates a lot of gray area for lawyers gaming the system.

What about attorneys’ fees?

Plaintiffs are permitted to recover attorneys’ fees on the theory that a plaintiff is not only providing a remedy for herself but for all disabled citizens. While it sounds reasonable, plaintiffs’ attorneys have taken advantage of the attorneys’ fees provision and teamed up with disabled persons to bring claims against businesses. In a matter of weeks, attorneys’ fees exceed the cost of compliance.

Who can be sued – business owners or landlords?

Landlords, tenants, businesses, organizations, institutions, or any person that is believed to commit discrimination by not affording proper access or facilities in compliance with ADA requirements.

Why do so many businesses seem out of compliance?

Many business premises were constructed or remodeled prior to the requirements going into effect. In fact, I would estimate that 80 percent of buildings in California are not compliant. It is rare to find new construction that isn’t compliant, but in some cases, architects and contractors follow only their local building codes, which may not provide the same degree of accessibility to persons with disabilities.

Are some businesses grandfathered and not subject to ADA regulations?

There is no grandfather clause. Any noncompliant building is subject to provisions of the ADA requiring the person or entity responsible to make changes that are “readily achievable.”

What can companies do to ward off lawsuits?

Businesses should attempt to make obvious changes outside the building first. For example, signage and spaces for handicap parking. Work your way into the premises and make sure doors and restrooms are accessible and posted with the proper signage. In most cases, a disabled or interested person who is not “in the business” to file complaints will simply bring something to the attention of an employee or manager. Take the complaint seriously and if it is a relatively affordable fix, do it or plan for it. Many plaintiffs’ lawyers just sue without providing what most would consider adequate opportunity to fix the problem.

If sued, should businesses quickly settle with plaintiffs to avoid trial in court?

In many cases, a condition that does not comply with the ADA creates clear liability and an easy path for the plaintiff’s attorney. This makes it tough for the business and the attorney defending a business. Consulting with an attorney is the first step. There are many arguments that can be raised to defeat lawsuits. In most cases, making a change early (with approval of your legal counsel) is the best way to go. The biggest problem is that many plaintiffs’ lawyers seem to target businesses that cannot afford to mount a large, expensive defense in federal court. They seem to target the small businesses that will simply pay to settle once they realized how expensive it is to defend. Many legitimate associations that protect rights of the disabled are frustrated because too many cases settle without improvements.

What is it about California that seems to attract ADA plaintiffs?

The Foundation for Fair Civil Justice seems to always rank California as one of the top 10 most litigious states. California’s ADA requirements are also more stringent than the federal ADA. One attorney has filed over 2,000 cases.